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No full texthttps://scholarlycommons.law.wlu.edu/scholarcelebration2025/1062/thumbnail.jp
Faculty Publications Display
No full texthttps://scholarlycommons.law.wlu.edu/scholarcelebration2025/1066/thumbnail.jp
Faculty Publications Display
No full texthttps://scholarlycommons.law.wlu.edu/scholarcelebration2025/1073/thumbnail.jp
Children and Violence: Agency, Experience, and Representation in and beyond Armed Conflict (Christelle Molima Bameka et al. eds., 2025)
No full textThis multi- disciplinary volume provides an innovative approach to children and violence, looking beyond the existing literature that focuses on child soldiers in the ‘Global South.’
Harnessing expert contributions from over a dozen countries, the book examines the relationship between children and violence, with a focus on children ensnared in military conflict, embroiled in criminal gangs, and enmeshed in political activism. It analyses how children join fights, how they fight, and what happens to them after fighting officially ends. It addresses cutting- edge issues such as cyberwars, self-defence, intergenerational trauma, gender fluidity, racism and state surveillance. Throughout, the book underscores the need to respect the agency and dignity of children and youth, to build cultures of juvenile rights, and to think critically of the place of the child amid global power politics and decolonisation. Through accessible writing, and the provision of considerable new data, this book supports advocacy work and will enrich teaching and spark further academic research.
This book will be of great interest to students of International Law, Human Rights, Childhood Studies, International Relations, Peace and Conflict Studies, Post- Conflict Studies, and Security Studies.https://scholarlycommons.law.wlu.edu/fac_books/1203/thumbnail.jp
Bankruptcy Appeal Barriers
Full text linkAppeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan was unlawful and have appealed. And they have been proven right: The Supreme Court recently found in its Purdue Pharma decision that bankruptcy courts lack the authority to approve the plan’s central legal device. Even so, those outraged creditors may receive nothing. The Boy Scouts argue that their appeal should be dismissed without reaching the merits because the plan is, in key respects, already implemented. And the existing case law surrounding bankruptcy appeal barriers offers considerable support for this outcome.
This Article attempts both to assess the significance of bankruptcy appeal barriers and to evaluate potential justifications for them. These barriers matter deeply to affected litigants but also have systemic consequences. The constitutional legitimacy of the bankruptcy courts is predicated on their supervision by Article III judges. This supervision is substantially eroded by bankruptcy appeal barriers. Nor are these concerns wholly abstract. Bankruptcy judges are powerful. Appeal subjects the insular world of bankruptcy to outside scrutiny from generalist judges who do not necessarily buy into the precepts of bankruptcy culture and are not presented with the same in-the-moment incentives as bankruptcy judges. This Article additionally finds troubling the degree to which some appellate courts seem ready to resort to appeal barriers as an escape hatch to avoid deciding appeals even in quite simple cases, often involving unsophisticated parties. The justifications for bankruptcy appeal barriers, therefore, require a careful look.
Normatively, this Article suggests that bankruptcy appeal barriers are on shaky ground. To make the case that bankruptcy appeal barriers could be sharply constrained or even abolished, this Article draws analogies both to the more general federal law of remedies, and to instances under state law—such as Delaware corporate law—where appellate courts must grapple with how to engage in an after-the-fact evaluation of an already consummated transaction
The Fiction of Equitable Distribution: Military Divorce, Disability, and the “Dire Plight” of the Former Military Spouse
Full text linkDivision of retired pay is one of the most emotionally fraught elements of military divorce. For the servicemember, retired pay compensates decades of service to his country. For the civilian spouse, it remunerates the same decades of domestic labor that enabled such service. Federal restrictions on division of military retirement have spawned confusion and litigation for more than thirty years. Today, former spouses remain extremely vulnerable to this unique and “dire plight.”
In civilian divorce, state courts apply state law to fairly distribute marital assets. Military retirement and disability benefits, however, fall within the scope of the Uniformed Services Former Spouses’ Protection Act (“USFSPA”). This federal statute hedges the power of state courts by exempting military disability benefits from division upon divorce, thereby limiting property awards to retired pay alone. For example, a former spouse may enter into a property settlement agreement that entitles her to half of the servicemember’s retired pay. But because an eligible servicemember must waive from retired pay amounts equal to his disability benefits, the former spouse might later discover that the value of her property settlement award has been drastically reduced, or even eliminated, as a result of a unilateral decision by her ex-husband to opt for waiver.
In 2017, the Supreme Court of the United States prohibited state courts from ordering a servicemember to reimburse his former spouse in the event of a reduction in her agreed upon property award due to waiver. However, neither the Court nor Congress has considered whether a servicemember may consent to reimbursement as a term of his divorce agreement. The continuing lack of uniformity in subsequent state decisions has exacerbated the very inequity that Congress sought to cure by enacting the USFSPA. Although this Note argues that the USFSPA permits contractual indemnification, further inroads must be made to protect the property interests of the former spouse to the same extent that her civilian counterpart’s interests are safeguarded. The federal government must restore to state courts the power to cure the “dire plight” imposed upon the former spouse of military marriage as a result of the USFSPA
Scrutinizing Succession
Full text linkBusinesses are at their most vulnerable during leadership transitions. Lack of succession planning has been recognized as a key risk factor, especially for closely held, family-owned businesses, but the problem is more extensive. Even public corporations with supposedly independent boards of directors too often fail to separate the corporation’s interests from those of charismatic leaders who enjoy the perquisites of control and may be loath to surrender it. Shareholders trust directors to manage business affairs, and ensuring leadership continuity is critical to this charge. Yet succession often remains overlooked in practice. It also remains understudied in the literature, and state legislatures have failed to create a specific statutory requirement to engage in succession planning. This Article draws on growing but still nascent succession scholarship, as well as robust literature on corporate fiduciary duties and mergers and acquisitions (M&A), to propose new solutions to the many problems that companies face at the time of succession.
In doing so, this Article makes several contributions to the literature. First, it provides a rich and layered account of the governance challenges that arise at the time of succession. This is an increasingly important moment in the life of the modern corporation, especially as companies use dual-class shares, enterprise foundations, and other methods to retain founder control even after going public. Second, this Article contends that a board cannot satisfy its fiduciary duties of care and loyalty unless it ensures that the corporation has in place a reasonable, current, well-documented, and clearly communicated succession plan for senior management. The absence of succession planning should be considered a per se violation of fiduciary duty.
Moreover, this Article argues that the succession plans boards promulgate should not receive the deference accorded to most director decisions pursuant to the business judgment rule. Instead, courts should borrow from Delaware M&A law and apply enhanced scrutiny. In both M&A and succession planning, when corporate managers contemplate institutional transition, problems of agency and entrenchment abound. These inflection points amplify the risk that corporate agents’ business judgment will be clouded by self-interest. In M&A, boards might reject prospective deals due to concerns that directors will lose their seats upon consummation of a change of control. And implementing succession plans lowers the cost of leadership transition, which can facilitate management changeover and provoke ambivalence and avoidance in director decision-making. Corporate agents in both contexts thus confront profound economic and psychological conflicts that might cause a board to act in its own interest instead of in the interests of the corporation and its shareholders. In the M&A context, Delaware courts address this concern by applying heightened judicial scrutiny, more rigorous than the business judgment rule, but more forgiving than exacting entire fairness review. This Article proposes application of a similar enhanced scrutiny standard in the succession planning context and reviews several high-profile cases to show how that standard could reshape corporate governance to better serve the interests of all shareholders
De-Policing: An Updated Empirical Analysis of Crime and Federal Police Reform
Full text linkThis Article builds on prior work by empirically analyzing the effect of federal intervention in local police departments on crime and clearance rates, using updated data and methodologies.
Congress passed 34 U.S.C. § 12601 (formerly 42 U.S.C. § 14141) in 1994 to give the United States Attorney General the authority to seek equitable relief against local and state law enforcement agencies engaged in patterns or practices of misconduct. Since its passage, the Department of Justice has investigated and intervened into dozens of American police departments, including some of the largest police departments in the country. Federal intervention represents one of the most significant, and arguably effective, forms of police reform. However, critics have argued that this top-down reform process may unintentionally cause officers to reduce enforcement, thereby contributing to higher crime rates. Some have labeled this theory the de-policing hypothesis. Prior studies have attempted to test this theory, often with inconsistent results.
Using updated methods and a significantly larger dataset, this Article attempts to re-examine the empirical support for the de-policing hypothesis in federal intervention cases. We find no evidence of de-policing after federal intervention. In fact, years after federal intervention, we find evidence that crime rates in cities targeted for federal intervention declined relative to our control group.
These findings have important implications for the literature on police reform and the empirical study of the criminal justice system. They suggest that there need not be a compromise between the protection of constitutional rights and public safety
Double Dosing: How Brand-Name Pharmaceutical Manufacturers Manipulate Patent Rules to Extend Market Exclusivity
No full textA robust patent system is important for spurring innovation, but it is not without risk. Because a patent owner has exclusivity over the patented subject matter for a specific term, there is incentive to extend that monopoly however possible. Identical subject matter is unpatentable, but obvious variants of an existing patent may be allowed if the applicant agrees to the same expiration date for both patents. This agreement is called a terminal disclaimer. While patents tied together with terminal disclaimers may not necessarily lead to unjust patent term extensions, an army of terminal disclaimers directed at one invention presents a different problem: it creates a patent thicket. This problem is especially prevalent in the pharmaceutical industry. When brand-name drug manufacturers create patent thickets, they often deter competition from generic manufacturers because the cost of cutting through significant numbers of patents can be extremely high. The consumers ultimately suffer.
The United States Patent and Trademark Office (USPTO) recently attempted to curtail this kind of patent gamesmanship. The USPTO’s proposed rule would have allowed challengers to invalidate entire patent groups by striking one claim of one patent in the group. Though the proposal ultimately failed for reasons explored in this Note, it did seek to address the seemingly growing threat of dense patent thickets. This Note suggests two alternative solutions: adopting an improvement patent model and banning direct-to-consumer (DTC) pharmaceutical advertising. The improvement patent model would require inventors who apply for minor improvements to their original invention to relinquish exclusivity over the prior invention to allow competitors to practice the patented material. A ban on DTC advertising would decrease the financial incentive brand-name manufacturers have to extend their monopolies by decreasing the often artificial demand for their products